Cheffins v. Stewart: Burning Man; Burning Ships

In a recent decision, the Ninth Circuit Court of Appeals adopted a utility-based standard for determining when a work of art is deemed “applied art” and therefore not entitled to protection under the Visual Artists Rights Act (“VARA”).1 VARA was enacted in 1990 as an amendment to the Copyright Act, and incorporated the concept of droit moral to prohibit the “intentional distortion, mutilation or other modification” of a work of visual art, rather than a work of “applied art.”2 In Cheffins v. Stewart,3 the appeals court held that the appropriate standard for determining whether a work of art is ineligible for protection under VARA as “applied art” is whether the work “was – and continues to be – utilitarian in nature.”4

This ruling poses substantial obstacles for works that contain a utilitarian function to receive protection under VARA. Despite the court’s attempt to clarify the difference between “applied art” and “visual art,” its analysis also may create more uncertainty for artists who seek to bring a VARA claim, since many art works contain utilitarian aspects, and it is unclear when a retained utilitarian function becomes significant enough to result in a work being deemed “applied art.”

The appeal arose from a dispute between the owners of La Contessa, a former school bus transformed into a replica of a 16th century Spanish galleon, and the defendant, who had purchased a plot of land on which the owners stored La Contessa. For years, La Contessa transported attendees at the Burning Man Festival in Nevada, but the festival ultimately banned it as unsafe for transportation. At that point, La Contessa moved to a plot of land that the defendant subsequently purchased; he then burned the wooden galleon enhancements in order to sell the underlying bus to a scrap metal dealer. The owners of La Contessa sued the defendant on the basis that his destruction of La Contessa violated VARA because he intentionally damaged the work. The defendant argued La Contessa was not protected by VARA because it fell under the category of “applied art,” not “visual art.” The District Court agreed, ruling for the defendant on summary judgment.

The Ninth Circuit affirmed the District Court’s judgment, ruling that “La Contessa plainly was ‘applied art’” not protected by VARA given the school bus’s original utilitarian purpose and its fundamentally utilitarian nature after embellishment by the artists.5 Recognizing that VARA does not define “visual art” or “applied art,” the appellate court adopted a standard where “the focus of [the] inquiry should be on whether the object in question originally was – and continues to be – utilitarian in nature.”6 If the object retains a significant utilitarian purpose, then it constitutes “applied art” unprotected by VARA. In adopting this test, the court hoped to avoid the need for courts to critique art or weigh the importance of artistic qualities when analyzing whether a work is protected by VARA.

Applying this test to the facts, the majority noted that La Contessa began as “a simple school bus – an object which unquestionably served the utilitarian function of transportation,” and while the creators adorned the bus with various “elaborative decorative elements” that had “many artistic qualities,” the primary function of La Contessa remained utilitarian.7 The work was used for transportation at the Burning Man festival and also served as a stage for performances and shows.8 As such, La Contessa “continued to serve a significant utilitarian function upon its completion” and therefore constituted “applied art.”9

Judge McKeown, writing in concurrence, disagreed with the majority’s “utilitarian” test and instead proposed a more nuanced, flexible approach in determining the nature of works so as not to “unduly narrow the protections of artists under [VARA].”10 Judge McKeown stated that the appropriate question to ask when determining whether a work of art constitutes applied art is whether “the primary purpose of the work as a whole is to serve a practical, useful function, and whether the aesthetic elements are subservient to that utilitarian purpose.”11 To highlight the flaws she perceived in the majority’s ruling, Judge McKeown described numerous historic works of art that would not be protected as visual art, including the Caryatids of the Acropolis and the monumental carvings of Ramses at the temple of Karnak, as these works retained a significant utilitarian function as they “are in fact columns that provided buildings with structural integrity.”12

Although the Court of Appeals hoped to avoid a need for “line drawing” when defining applied art,13 the test the majority adopted may not provide the clarity and objectivity for which it hoped. Lower courts will still need to determine when a retained utilitarian purpose is “significant,” which may draw them into a quagmire of artistic analysis. For example, when weighing the “significance” of the utilitarian purpose, should a court look to the artist’s intent for the work, or a subsequent owner’s actual use? Will a work’s artistic merit inherently reduce its utilitarian significance? Does the significance of the utilitarian function change over time, as advances in design and technology render the utilitarian function obsolete? Further, by articulating such a stringent standard, the Ninth Circuit increased the likelihood that lower courts will classify any work that contains a subsidiary utilitarian element as “applied art.” This will significantly narrow the reach of VARA and deter artists from bringing claims with respect to destruction of works that may incorporate utilitarian elements, thusly undermining one of VARA’s main goals. Judge McKeown hoped to avoid such a scenario by arguing that the court’s focus should be on the “primary purpose” of a work, which acknowledges the possibility that both a utilitarian and visual purpose may co-exist in a work, and would ultimately provide greater protection to artists and their works.

1. This standard largely conforms to those promulgated by the Second Circuit in Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995) (holding that a sculpture constructed of portions of a school bus and affixed to a wall in a building lobby was not “applied art”) and Pollara v. Seymour, 344 F.3d 265 (2d Cir. 2003) (holding that “VARA may protect a sculpture that looks like a piece of furniture, but it does not protect a piece of utilitarian furniture, whether or not it could arguably be called a sculpture.”).
2. See17 U.S.C. § 106A(a).
3. No. 12-16913 (9th Cir. June 8, 2016).
4. See id. at 10.
5. Id. at 13.
6. Id. at 10.
7. Id. at 13.
8. Id.
9. Id.
10. Id. at 18.
11. Id. at 19 (emphasis added).
12. Id. at 24.
13. Id. at 11.

Lena C. Saltos is an associate in the firm’s art law group. She provides counsel to auction houses, art collectors and museums and has represented clients in art-related litigation involving provenance and copyright infringement. Ms. Saltos also maintains an active pro bono practice in representing an array of visual artists and is an Associate Board member of Volunteer Lawyers for the Arts.

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